Don't tread on Suhr

Over at his blog, Michael Plaisted is apoplectic about the video interview that I did with WMC. He says that it is "propaganda" and a "comedy star-turn." I guess he didn't like it but I don't know why because he doesn't respond to a single thing that I said, other than to suggest I mischaracterized Thomas v. Mallett (I dare him to back that up) and that, if the people think the court gets the constitution wrong, they ought to just shut up and accept what they have been told.

Mike thinks that I just must be not only wrong but somehow comical, because 1)WMC asked me to do it and 2)because, after 16 years as a litigator at one of the largest firms in the country and ten years as general counsel at an international manufacturing concern (during which time I consistently taught at the undergraduate and law school levels), I just recently decided that I wanted to devote full time to teaching and scholarship.

Maybe my observations were wrong (certainly there are smart lawyers and academics who see things differently), but you wouldn't know it from what Plaisted wrote.

I am a bit more put off, however, by his attack on one of my student for some work that was undertaken on his own without, as far as I know, direction or compensation from anyone. In describing the state supreme court's decision in a State v. DuBose, Daniel Suhr wrote that the Court "significantly departed from its own prior precedent and that of the U.S. Supreme Court."

Lawyer Plaisted (a UW grad, I think) says Daniel is wrong:

... I happen to be very familiar with another one of the cases identified by Suhr as "failing to defer to the U.S. Supreme Court". In fact, the case is exactly the opposite – getting the Wisconsin case law in line with the U.S. Supremes – not the other way around.

According to Plaisted, the DuBose Court "makes it clear that the Wisconsin Supreme Court was changing from its previous standards on show-ups to comport with U.S. Supreme Court cases on the same subject; hardly ignoring or in conflict with federal law."

He offers no support for that assertion, so let's examine it here. If you don't want to read the legal stuff that follows, the takeaway is that Plaisted's characterization of DuBose is, I don't know what else to say, bizarre. It's a bit like saying that, if the Wisconsin Supreme Court decided to abandon the rule of Brown v. Board of Education in interpreting the state equal protection clause and return to the "separate but equal" rule of Plessy v. Ferguson, it would be getting in line with the U.S. Supremes (the 1896 version.) (The Supremacy clause would prohibit such a return in real life, but you get the point.)

Here's how I see it:

In DuBose, the the state Supreme Court, in the most generous interpretation, abandoned the U.S. Supreme Court's (Biggers and Braithwaite) and its own(Wolverton)current standards for determining the admissibility of out-of-court identifications in favor of a earlier standard that, by the court's own admission, the US Supreme Court had moved away from. Current federal practice was not to exclude identifications resulting from suggestive procedures if they are, nevertheless, reliable under the totality of the circumstances. The DuBose court moved to a rule that would exclude them unless they were necessary. The Court did this in response to studies cited by the Wisconsin Innocence Project that are claimed to show that eyewitness identification is unreliable.

That this was a departure from the current Supreme Court practice is clear from reading DuBose itself. The Court characterized earlier SCOTUS decisions as focusing on whether the suggestive identification was necessary (did the police have to do it that way?) rather than whether the resulting identification was unreliable (is it likely that the eyeball witness pointed at the wrong guy?). Justice Crooks, writing in DuBose, conceded that the rule had changed: "After the Supreme Court's decisions in Biggers and Brathwaite, the test for showups evolved from an inquiry into unnecessary suggestiveness to an inquiry of impermissible suggestiveness, while forgiving impermissible suggestiveness if the identification could be said to be reliable."

But, Justice Crooks wrote, the substantially similar words in the Wisconsin Constitution ought to be read to require more:

Based on our reading of that clause, and keeping in mind the principles discussed herein, the approach outlined in Biggers and Brathwaite does not satisfy this requirement. We conclude instead that Article I, Section 8 necessitates the application of the approach we are now adopting,[18] which is a return to the principles enunciated by the United States Supreme Court's decisions in Stovall, Wade, and Gilbert.

In other words, we are going to abandon what the Supreme Court is currently doing and go back to what we think it used to do. Whether this is a good rule (or whether it really is what the US Supreme Court used to do) is something we could discuss, but DuBose was not simply getting in line with the U.S. Supreme Court.

But you don't have to take my word for it. You can rely on what Justice Louis Butler said about DuBose in another case (Knapp which we will get to in a moment). After maintaining that the state Supreme Court has the authority (and it does) to interpret cognate provisions of the Wisconsin Constitution differently than the U.S Supreme Court reads their federal counterparts, he wrote:

Our recent decision in State v. Dubose, 2005 WI 126, __ Wis. 2d __, __ N.W.2d __, fits this framework. In that case, based in part on the extensive research on the inaccuracy of eyewitness identifications, this court relied on the Due Process Clause of the Wisconsin Constitution to conclude that showup identifications are inadmissible unless, based on the totality of the circumstances, otherwise necessary. Id., ¶¶29-34. Thus, we departed from the current federal law that centered on the reliability as opposed to the necessity of the showup. Id. (emphasis added.)

Plaisted has argued that Louis Butler is a smart and honest guy. Although I disagree with Justice Butler on many legal matters, I agree with this characterization. His defenders ought to be as candid and accurate as he was.

Mike doesn't talk about Knapp itself, but blogging lawyer Illusory Tenant does (and, yes, I said something nice about him on Jane Hampden's show; I enjoy his blog as much as I disagree with much that he [or she, how could we know?] says.)

But he wants to take issue with Daniel's characterization of the Knapp case which excluded physical evidence obtained as a result of a failure to Mirandize a suspect. (The officer asked him what he was wearing last night and he pointed to a sweat shirt on the floor that was ultimately found to be stained with the victim's blood.)Daniel wrote that the Knapp majority concluded that "Wisconsin's search and seizure clause, which is virtually identically worded, provides greater protection to suspected criminals."

IT's criticism is not, as Plasited's is, just flatly wrong. In fact, what he does is to shift away from what Daniel said to statements made by Charlie Sykes. He wants to say that the federal rule was not crystal clear and that is certainly so. But the implication that Daniel's characterization of the case is wrong ("overly simplified — if not misleading — account of his jurisprudence") misses the mark.

Let's go to the law.

As IT correctly observes (and as I said in my own white paper), the SCOTUS decision (Patane) that the Knapp court did not apply and which held that physical fruits of a Miranda violation need not be excluded had no majority opinion. Only three justices joined the plurality opinion, but, as Justice Butler wrote in Knapp, two concurring Justices agreed that "[a]dmission of nontestimonial physical fruits . . . does not run the risk of admitting into trial an accused's coerced incriminating statements against himself." Maybe they'd see the Knapp facts differently (the officer in Knapp said he intentionally did not Mirandize) but they also said other things suggesting that introduction of reliable physical evidence ought not to be excluded because it was turned up in the course of an unwarned conversation.

The Siebert case, decided the same day, involved the introduction of testimonial evidence (the defendant's confession) following a Miranda violation.

There may be wiggle room between Patane and Knapp, but the court didn't take it. Again, we only need look at what the Knapp court itself said it was doing. It made it quite clear that it was basing its decision on Article I, section 8 of the Wisconsin Constitution and not on federal interpretations of the 5th Amendment. It did that explicitly and for good reason. A US Supreme Court decision, Michigan v. Long, makes clear that, if state supreme court are going to have their independent interpretations of cognate state constitutional provisions respected (New Federalism), they must make it clear that they are relying on state, and not federal, grounds. The Knapp court did that and so the state had no recourse to the US Supreme Court. It's decision excluding the evidence was final.

(It has no bearing on the issues here, but, just for the record, Knapp was convicted anyway.)


My point is that these are all legitimate issues and not the result of some WMC/talk radio/Federalist Society disinformation machine. The disinformation comes from people who ought to know better and act as if the criticisms raised by those that they disagree with are spun from whole cloth. They can do better than that.